Review of legislation, practice and procedures relating to family violence in the Family Courts
To assess the appropriateness of the legislation, practices and procedures in relation to matters before the federal family courts where issues of family violence arise and to recommend any improvements considered necessary.
Professor Richard Chisholm AM
The objectives of the Review are to examine whether:
the practices and procedures in the family courts encourage appropriate disclosure of family violence
appropriate support is provided within the court system for families who have experienced or are at risk of violence
information disclosed to the courts by litigants or their representatives is appropriately shared or made available within the courts
the legislation and procedures support best practice for handling family violence matters, and
appropriate legal representation is provided in such cases.
The Review will take into account the case involving Darcey Freeman in considering recommendations for changes to improve responses to cases involving family violence.
In carrying out the Review, Professor Chisholm will obtain expert input on the issue of family violence in the context of court processes and proceedings. He will also consult interested stakeholders, including the Attorney-General's Department, the Family Court of Australia and the Federal Magistrates Court.
The Report of the Review will be provided to the Attorney-General, the Chief Justice of the Family Court and the Chief Federal Magistrate within 4 months of its commencement.
1.2 THE SCOPE OF THE REVIEW
The ‘aim’ of the Review, as stated in the Terms of Reference is
To assess the appropriateness of the legislation, practices and procedures in relation to matters before the federal family courts where issues of family violence arise and to recommend any improvements considered necessary.
The relevant legislation is primarily the Family Law Act 1975 (Cth), but includes delegated legislation such as the Family Law Rules 2004, the Federal Magistrates Court Rules 2001, and any other relevant delegated legislation. The term ‘practices and procedures’ includes any relevant Practice Directions, or Court guidelines (as well as actual practices) dealing with matters before the ‘federal family courts’, a term that must refer to the Family Court of Australia and the Federal Magistrates Court (but not to the Family Court of Western Australia, which is a State Court).
The term ‘family violence’ is not defined in the Terms of Reference. It is an ordinary term, commonly understood, and it would not be right to limit the Review by adopting a narrow or technical definition. As will be seen, ‘family violence’ takes many forms, and there are, no doubt, some forms of behaviour that would be regarded by some people and not by others as falling within the term. It will be necessary to return to this problem.
Although family violence is often accompanied by child abuse, and although it can be seen as itself a form of child abuse, the Terms of Reference do not call for an examination of child abuse, as distinct from family violence. Thus specific provisions in the Act dealing with child abuse, and the Family Court of Australia’s Magellan Program (which is a case management program for serious child abuse cases, involving collaboration with legal aid and child protection agencies) fall outside the scope of this Review.
The task is to assess the appropriateness of the legislation, practices and procedures ‘in relation to matters before the federal family courts where issues of family violence arise’. The words ‘before the federal family courts’ indicate that the main focus of the Review is on cases actually commenced, rather than the appropriateness of the legislation, practices or procedures in relation to the pre-court family dispute resolution process, except to the extent that they relate to cases before the courts.
The Review is not confined to the small minority of matters that proceed to adjudication. It includes cases involving family violence issues that are settled between the parties after proceedings have been commenced in the family courts.
The first of the five ‘objectives’ of the Review is ‘to examine whether the practices and procedures in the family courts encourage appropriate disclosure of family violence’. This objective requires consideration of whether the system discourages people who have been exposed to violence from making disclosures. The words ‘appropriate disclosure’ obviously exclude allegations that are knowingly false.
The second objective is ‘to examine whether appropriate support is provided within the court system for families who have experienced or are at risk of violence’. The word ‘support’ would include court facilities, sources of advice and/or referral available in the courts, and the demeanour and approach of court personnel.
The third objective is ‘to examine whether information disclosed to the courts by litigants or their representatives is appropriately shared or made available within the courts’. This objective refers to the sharing of information between the Family Court of Australia and the Federal Magistrates Court and within each court. The phrase ‘within the courts’, and the terms of reference of the ALRC Report announced by the Attorney-General, indicate that the Review does not include questions relating to the sharing of information between the federal courts and state and territory child protection or other bodies. Nor does it include the sharing of information between community-based counselling and dispute resolution services and the courts.
The fourth objective is ‘to examine whether the legislation and procedures support best practice for handling family violence matters’. This appears to emphasise that the Review is intended to include all aspects of the courts’ work in relation to family violence matters, and is intended to identify, if possible, the most desirable way of doing things.
The fifth objective is ‘to examine whether appropriate legal representation is provided in such cases’. This includes the question of legal aid and the representation of children as well as adults. I take the word ‘appropriate’ also to refer to the effectiveness of legal representation.
The terms of reference also require me to ‘take into account the case involving Darcey Freeman in considering recommendations for changes to improve responses to cases involving family violence’.
Some other matters relating to the scope of the Review require mention.
The Australian Institute of Family Studies is conducting a major evaluation of the 2006 changes to the Family Law Act 1975.1 This is a larger and very different exercise from the present Review. Although it will no doubt include consideration of family violence issues, it is a much wider evaluation, and is intended to provide detailed information about the operation of the system: while no doubt that material will be extremely relevant to law reform, the evaluation is not itself an exercise in law reform. The timing of the two exercises means that the AIFS evaluation and the present Review will probably be completed at about the same time.
The Terms of Reference (reflecting the legislation) are in gender-neutral terms and thus the Review includes all types of family violence, including, for example, violence by women against men, and by a man or woman against any child in the household.2
I do not believe the Review is intended to deal with the extent to which a party’s violence should be taken into account in determining financial matters under the Family Law Act 1975.3 Although that issue might be regarded as literally within the terms of reference, in my view the context, including the Attorney-General’s speech and the reference to the Darcey Freeman case, as well as the limited time for the Review, indicate that it was not intended that I should examine this issue.
1.3 THE CONDUCT OF THE REVIEW
Upon the announcement of the Review by the Attorney-General,4 I was contracted by the Department on 27 July 2009 to carry out the review. The completion date was 27 November 2009. The Department kindly provided me with an office and support for the Review. A senior legal officer was assigned to the Review on a near full-time basis, and I had the benefit of secretarial and administrative support. I also had the benefit of discussions with senior officers in the department.
I was also fortunate in having assistance from both the Family Court of Australia and the Federal Magistrates Court. Each court designated a person to assist by providing information and documents relating to the operation of the Court. I also had the chance to discuss issues relating to the Review with the Chief Justice and the Chief Federal Magistrate, with a number of Judges and Federal Magistrates, and with other members of the court personnel.
Individuals and organisations thought to have an interest in the Review were sent email invitations to make submissions, and I took whatever opportunities arose to make it clear through the media that all comments and submissions would be welcomed. No doubt many people learned of the Review though the media, and I hope that as many people as possible had an opportunity to contribute to it. In addition, although time was limited, a number of helpful discussions were conducted with individuals and organisations having special expertise in the area. Steps were taken to ascertain whether people wished their comments or submissions to be confidential. List of persons and organisations who made submissions or contributed in other ways are set out in Appendix 1. I am very grateful to them all for their assistance, which has been of great value in the preparation of this Report.
I have taken the Darcey Freeman case into account, as required by the Terms of Reference. It would not be appropriate to comment on the case in this Report, which the Attorney-General may wish to make public. Firstly, ordinary decency means that this Review should respect the privacy of family members. They have had to cope with a terrible tragedy, and I would not want this review to subject them to any avoidable distress or exposure. I extend my deepest sympathy to them. Secondly, s 121 of the Family Law Act 1975 restricts the publication of an account of any proceedings under the Act that identifies parties, witnesses, or others involved. This section would apply if the Attorney-General were to make this Report public. Thirdly, as Darcey’s father has been committed to trial for murder, it would be inappropriate to make further comment about matters that might become relevant for the trial.
It is appropriate to say, however, that I have examined the court file relating to the case and in my view there is nothing in that file suggesting that the judicial officer or any other member of the court staff had any reason to fear for the safety of any of the children.
I accept sole responsibility for the contents of this report and the recommendations made in it.
In preparing this Report, I had the benefit of over 100 submissions. I have carefully considered them all, and they have been very helpful. Many of the ideas in the submissions are reflected in this Report. I am very grateful to all those who went to the trouble of preparing a submission – in many cases, I know, they involved a great deal of work.
I hope that those who have provided submissions understand that the limited time for the conduct of the Review has made it impossible for me to engage in dialogue with those who contributed. It will not be possible, therefore, to provide a response to the authors of submissions individually, discussing the substance of the submission. In this section, however, I make some general comments on the submissions.
It is convenient to consider the submissions in three main categories: from individuals, from lobby groups, and from professionals. This categorisation is only approximate. An individual who has been involved in the family law system as a party might also have relevant professional qualifications. Some of the ‘lobby groups’ have considerable expertise in family law. And some professionals have a particular relationship with particular categories of participants in family law. For example, a women’s legal service would be expected to bring to bear its professional expertise and knowledge, but might also be particularly attuned to the perspectives and interests of its clients. I have attempted to consider the context of all the submissions, but it nevertheless seems useful to say something about the three main categories.
First, there are submissions from individuals. Typically, these individual submissions set out the individual’s experience with the system, their views on that experience, and recommendations for change. As might be expected, most of these submissions were from individuals who felt that the system let them down. Many of them are full of pain and distress. Those submissions that set out the details of actual cases that have been before the courts, and those whose authors indicated that they wishes their comments to remain private, have been treated as confidential.
These submissions have been valuable, in particular for two reasons. First, they portray in vivid terms the experience of the writers, and present the writers’ perspective on the system and how it operated in their case. It is of great value for any reviewer to be reminded of the impact of the system on individuals, and to be confronted with the wide range of experiences of people coming before the court. These stories help a reviewer to avoid simplistic statements of how the system operates: the reviewer is continually challenged to address the way the system will impact on each individual family member, in the almost infinite range of situations that come before the courts. Second, the submissions often contain suggestions for change which need to be given careful consideration.
Lobby groups and similar organisations
The second category consists of what might be called lobby groups. These are organisations that actively lobby for change in the family law system, and, in some cases, have been created at least partly for that purpose. To varying extents, they take up the cause of particular categories of family members (for example single fathers, or mothers affected by violence, or children). However in general they attempt to take into account the legitimate interests of other family members, and they typically present their recommendations as intended to improve the system for all family members, especially children.
These organisations often base their submissions or lobbying at least partly on the reported experiences of their members and others who come to them for support. They typically provide assistance and support to those who come to them, as well as drawing on their experiences when lobbying for change. In some cases, those involved in the organisations have considerable experience, having participated in family law changes on a number of occasions over the years.
Submissions from these organisations have also been valuable for this Review. They often provide interesting reasons for the recommendations, and often attach a number of case examples, presumably drawn from information provided from their members and those who have sought their help. Those case studies, although usually anonymous, can be valuable for the same reasons as the individual submissions, discussed above.
Professional individuals and organisations
The third main category is submissions from individuals or organisations professionally involved in family law. They include lawyers and social scientists, both practising and academic. I include in this category some of the obvious ‘stakeholders’ in the family law system, such as the family courts themselves, the relevant government departments, the Family Law Council, Family Law Section of the Law Council of Australia, and the various family dispute resolutions organisations, such as the Family Relationship Centres.
These submissions are valuable because those making them can base the submissions on their professional expertise and experience (and in some cases on relevant research evidence), and because the individuals and organisations do not purport to represent the views of any particular parties in family law.
Considering the submissions
The previous discussion mentions some of the valuable qualities of the various categories of submissions. It is also important to notice ways in which submissions need to be treated with some care.
To the extent that submissions draw on individual cases, it is necessary to be cautious about two aspects. The first is the accuracy of the account given of the case. As is well known, family law cases typically involve different versions of the facts. Whenever one party reports on his or her experience, whether directly to the Review or through another person or organisation, it is quite possible that the other party to the proceedings would give a very different account of the facts. This does not mean that either party is attempting to mislead: each may be telling the true story as they have experienced it. There can be genuine differences of recollections. And it is almost inevitable that the telling of the story will emphasise some aspects, and omit others, and will reflect what is emotionally important to the person telling the story, so that even when both parties are trying to be truthful, the two stories are likely to be very different. In so far as each individual story describes the actions and attitudes of other people, it might be particularly liable to reflect the perspective of the teller. For example, a person whose evidence was not accepted by a judicial officer might, in telling the story, say that the judicial officer made a certain decision even though the facts were as the teller asserts, or that the judicial officer ‘ignored’ the teller’s evidence. Unless more information is provided (for example a copy of the judgment) showing the reasons given for the decision, it is difficult for the reader to draw confident conclusions about the judicial officer’s reasons.
Similarly, it is necessary to be cautious when the stories attribute particular motivations to other parties. For example, if the teller of the story says that the other party made up false allegations, the reader cannot know whether the other party’s allegations, even if in error, stemmed from some misunderstanding or mistake or whether they were indeed fabricated. Again, if the teller says that the other party wanted to spend more time with the child only in order to pay less child support, the reader cannot know whether this was really the other party’s motivation, even if the teller genuinely believes that it was.
The second aspect of individual cases that needs consideration is whether they are representative. The number of anecdotes is vastly smaller than the total number of cases, and the Reviewer often has no way of knowing whether the anecdotes provided are typical of cases dealt with by the system.
This is particularly important in the case of anecdotes provided by lobby groups or other organisations that have a public profile as representing particular categories of people, or having a particular position on family law issues. It is entirely likely, in my view, that individuals who approach such organisations will mainly be in the category serviced by the organisation, or have views similar to those of the organisation. Thus the sample of cases known to each organisation may well reflect the public profile of the organisation, and perhaps be quite unrepresentative of the experiences of most people in the family law system. More subtly, those who approach the organisations and tell their stories, and those who listen and record the stories, might be likely - in each case without any intention to misrepresent the facts - to emphasise features of the case that are consistent with the general position of the organisation.
For that reason, it is wise to be cautious about assuming that particular cases, or particular groups of cases, are typical of what happens in the family law system. One can be more confident if the cases have been randomly selected by an independent person or body, and the submission or piece of research includes a reasoned discussion of the extent to which the cases studies might be representative. It is for this reason, of course, that the forthcoming evaluation by the Australian Institute of Family Studies is likely to be of particular value, being based on careful research on sample cases that are likely to be at least reasonably representative of most cases that go through the system.
The victim’s dilemma
Many submissions described, in different ways, what may conveniently be called ‘the victim’s dilemma.’ It applies where the victim has experienced family violence and has well-founded fears for the safety of the children if they are to be in the care of the perpetrator. If the victim seeks orders that will protect the children from risk (such as orders for no contact or for only supervised contact), the victim will need to provide evidence of the risk, and this will normally be evidence of previous abuse or family violence. That evidence will often need to be detailed, so that the context and the significance of specific acts can be understood. The victim, in such cases, believes that seeking such orders is necessary for the safety of the child.
The dilemma is that the seeking of such orders, and spelling out the reasons for the fear of risk, may be seen as vindictive or punitive, dwelling on the past and old grievances, or as a way of alienating the children from the perpetrator. The victim might therefore be rightly concerned that if the court does not accept his or her evidence, or if it considers that the protective orders are not warranted, it might take an adverse view of the victim, and not only fail to make the orders sought by the victim, but make orders placing the children with the perpetrator for longer periods, to protect them from what it might see as a style of parenting by the victim that would harm the children by alienating them from the other parent. Such an outcome, the victim would believe, would place the children at additional risk of harm.
A number of circumstances contribute to the seriousness of the dilemma. First, it may be that there had been a pattern of violence over a period of time, and that in the early stages the victim did not complain of it to others, perhaps for shame, perhaps believing the perpetrator’s apologies and hoping it would stop, or perhaps being afraid that making the complaint might trigger further violence or abuse. In order to explain the basis for the fear, the victim will need to give the history. But it may be met with the criticism that if such things had happened, the victim would have complained: it will be argued that the victim’s lack of action at the time is a sign that there really had been no such family violence, or that it was of a trivial nature.
Second, it may be that much of the violence occurred in the home and had no documented physical consequences, in which case it may be difficult for the victim to persuade the court to accept the allegation of violence, rather than the perpetrator’s denial.
Third, if the victim has been traumatised by the violence, the combination of such trauma with the inevitable anxiety and stress of court proceedings (especially proceedings involving such intimate disclosures of the victim’s family life), may lead to the victim being somewhat unorganised, anxious or depressed, and, for such reasons, an unimpressive witness.
A victim who is rightly focussed on protecting the child therefore faces an agonising choice: balancing the risk to the child from not taking protective action against the risk to the child of doing so unsuccessfully, with the consequence that the child spends more time with the perpetrator.
The ‘victim’s dilemma’ applies at all stages of the proceedings, and before. It is relevant to whether the victim will claim exemption from compulsory dispute resolution, to what orders will be proposed, and, in particular, to whether to enter into particular proposals in a parenting plan or consent order.
A significant number of individual and organisational submissions argued that because of what I have called the ‘victim’s dilemma’, victims often fail to disclose family violence.
The ‘victim’s dilemma’ is also the court’s dilemma. People do sometimes tell lies in court to obtain the outcome they want. The court will need to consider the reliability of the evidence given by each of the parties. The victim may well appear to the court in these cases as someone who did not complain of the alleged violence when it happened, but is now complaining about it and asking the court to keep the children away from the other parent, and whose evidence and presentation is unorganised, and perhaps contradictory or confused about some matters. By contrast, it may be possible for the perpetrator to present very persuasively to the court, calmly denying the allegations or, perhaps conceding some incidents but presenting them as minor or mutually violent episodes.
This is a dilemma for the court because the features of the victim’s case and presentation – no complaint at the time, unorganised and unimpressive evidence – could have resulted either from a genuine history of abuse or from a desire to fabricate evidence, perhaps with the objective of punishing the other party or alienating the other party from the children. In the absence of corroboration, or reliable expert evidence, or successful cross-examination of one or other party, it may be impossible for the court to know which is the truth. Thus, the court runs the risk of harming the children: by unnecessarily separating the children from a good parent (if the allegations are fabricated but it treats them as true), or placing the children at risk (if the allegations are true but it treats them as fabricated). The risk is greatest in interim proceedings, where the court usually lacks comprehensive evidence and usually has to manage without witnesses being cross-examined.
It is easy to see how this sort of situation can produce enormous distress for the parties (reflected in some of the submissions). If protective orders are made because the court accepts the victim’s case, or considers that not doing so would involve an unacceptable risk to the child, but in fact the allegations were fabricated, the wronged parent would be likely to feel that the court was prejudiced against him or her, or against men, or women, as the case may be. Similarly, if the court wrongly disbelieves the victim, and makes orders that the child should spend a lot of time with the (perpetrator) parent, the victim may well feel that the court is indifferent to the need to protect children, or that it is biased in favour of men, or in favour of women.
Of course the situations can be more complex than this, as where both parties have been involved in violent or abusive behaviour. But this account of the ‘victim’s dilemma’ has attempted to express what was a major theme in many of the submissions, especially the confidential ones. It highlights the importance and difficulty facing the courts in such cases: to discern as best it can where the truth lies, and to treat each party with respect. And it highlights how important it is that individuals working in the family law system, and the system as a whole (including the legislation), do not send messages to either party suggesting that they have pre-judged the issue, by assuming that one side or the other is more likely to be telling the truth. Achieving this is a challenge for the system that is considered in many areas covered in this Report.
Stereotypes and perceptions of bias
Finally, I should refer to a striking fact about some of the submissions, namely their strong concern to counter what they saw as unfair stereotyping of the people they represented. Thus some groups argued, sometimes in remarkable detail, about the relative numbers of mothers and father who kill their children, seeking to demonstrate that mothers could be as violent and dangerous as men. These statistics are of limited assistance in this Review, but such submissions indicate, I think, how strongly the authors object to what they see as adverse stereotypes suggesting that most men are violent. Similarly, other submissions argued equally strongly against stereotypes of mothers as liable to invent allegations of violence in order to keep their children away from good fathers. The main relevance of these submissions is to emphasise the importance of fairness, and the pain and anguish people can experience if they feel that they are being dealt with on the basis of prejudice. I have tried to keep this important lesson in mind in preparing this Report.
In my view the evidence generally suggests, as one would expect, that the majority of men are not violent and the majority of mothers support their children having a close relationship with their fathers, and do not often manufacture allegations of violence. No doubt there are some violent men, and some women who fabricate evidence; and some violent women and some men who fabricate evidence.
The material received during this Review indicates that there are some men and some women who believe that they have been badly treated and that the system is biased against men, or against women. Thus some submissions suggested that the courts routinely believed allegations of violence and too readily removed the children as a result. Others suggested that the system tended to discourage allegations of violence, and when they were made, tended to disbelieve or minimise their importance, exposing children to risk and adding to the abuse of the victims of violence. Whether they are correct in such a belief about their own cases would require a detailed investigation of each case, and even then the truth may or may not emerge.
Inevitably individual professionals in the family law system will have their own values and assumptions, and everybody makes mistakes at times. I am not aware of any reliable evidence to suggest that there is a systemic bias either against men or against women among those who practise family law. But what is most important is the common ground in these submissions: that the system should be fair and free of bias of any kind. This objective underpins the discussions and recommendations in this Report.
To conclude, I believe that it is possible, and sensible, for all those who have an interest in this subject to work towards a system that responds as well as is humanly possible to the challenge of identifying family violence when it exists, understanding what it is and what it means, especially for the children, and responding in a way that is fair and creates the best possible environment for the children to develop, namely one in which they have a relationship with parents and other family members that enables them to be safe and to develop to their full potential.